M.S. Ramachandra Rao, J.
1. This Writ Petition is filed seeking a Writ of Certiorari to call for the records relating to the orders dt.16-05-2019 in S.A.No.171 of 2016 passed by the Debts Recovery Tribunal-I, Hyderabad and quash the same on the ground that it was arbitrary, illegal, capricious and violative of principles of natural justice and also the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short ‘the Act’) and also Security Interest (Enforcement) Rules, 2002 and consequently declare the possession notice dt.05-02-2016 issued under Section 13(4) of the Act and the sale notice dt.10-01-2016 issued by 1st respondent as null and void and unenforceable.
2. The petitioner No.1 is an Infrastructure Company doing various projects.
3. On its application, the 1st respondent Bank sanctioned Open Cash Credit limited of Rs.2.40 crores, Working Capital Demand loan limit of Rs.9.60 crores and Bank Guarantee limit of Rs.25.00 crores. For these facilities, petitioner Nos.2 to 8 stood as guarantors.
CONTENTIONS OF PETITIONERS
4. According to the petitioner No.1, it had completed projects for APRSCL, Nellore worth Rs.3.30 crores, APHB Chandanagar worth Rs.3.85 crores, CMC, Doddaballapur worth Rs.1.00 crores and was due to receive Rs.8.15 crores from the said contractors. But there was delay in receiving payments from the respective Governments for the completed projects and so the account of petitioner No.1 Company became irregular. Also certain Bank Guarantees given by the petitioner no.1 had been invoked by the other contracting parties.
5. According to petitioner No.1, it requested the 1st respondent Bank to sanction temporary Over Draft Limit for one year with interest @ 13% p.a. and to reduce the interest rate on Open Cash Credit Limits and Working Capital Demand Loan to 13% and it had proposed to repay the additional temporary Over Draft liability in 6 monthly installments after a moratorium of 6 months.
6. Petitioners allege that the 1st respondent Bank ignored its request and classified the loan accounts of petitioner No.1 as NPA and it issued demand notices dt.01-11-2015 under Section 13(2) of the Act demanding Rs.35,84,09,534/- with interest from 01-11-2015.
7. According to petitioner No.1, the total Bank Guarantee limit was Rs.25.00 crores and only Bank Guarantees for an amount of Rs.8.37 crores were invoked by M/s.SICOM Limited, Mumbai and National Small Industries Corporation Limited and others in relation to works executed for those entities, but the 1st respondent Bank had unlawfully recalled even the uninvoked Bank Guarantee liabilities and that the petitioners were not liable to pay the same.
8. According to petitioner No.1, some of the properties which were given as mortgage to the 1st respondent Bank included agricultural properties apart from other securities, but in the demand notice dt.01-11-2015 issued under Sec.13(2) of the Act, the 1st respondent Bank proposed to initiate action under the Act even with regard to the agricultural lands which are exempted from applicability of provisions of the Act in view of Section 31(i) of the Act.
9. The petitioner No.1 further contended that possession notice under Sec.13(4) of the Act was also issued on 05-02-2016 against the agricultural properties which were mentioned at item Nos.3, 9 to 12 in the said notice and therefore both the notice dt.01-11-2015 issued under Section 13(2) of the Act as well as possession notice dt.05-02-2016 issued under Sec.13(4) of the Act are bad in law.
10. It is contended that the possession notice dt.05-02-2016 issued under Section 13(4) by the 1st respondent Bank stated that possession was already taken on 03-02-2015 of item Nos.1 to 3, on 04-02-2015 of item Nos.4 to 18 and on 05-02-2015 item Nos.9 to 12 were also taken possession though such taking of possession can only be subsequent to issuance of possession notice to the borrower and after affixing the same to conspicuous part of the secured asset under Rule 8(1) of the Act.
SA No.171 of 2016
11. Petitioners filed Securitization Application No.171 of 2016 invoking Section 17(1) of the Act seeking the following reliefs:
“a) To declare the possession notice dated 05-02-2016 issued under Section Rule 8(1) and (2) of Security Interest Enforcement Rules read with Section 13(4) of the Securitization Act and Demand Notice dt.21-11-2015 issued under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 as null and void and consequently declare that the respondent is not entitled to proceed under the Securitization Act and to declare that Rule 8(6) notice as null and void under Rule 8(5) (6) and Rule 9(1) of the Security Interest (Enforcement) Rules, 2002 read with Section 31(i) of the SARFAESI Act and principles laid down by the Hon’ble Apex Court in Mathew Varghees V/s. Amrith Prasad.
b) To direct the respondent to produce all the original records, books and other documents pertaining the loan facility availed by the applicant and statement of account duly mentioning the rate of interest charged, penal interest charged and the other charges to the loan account.
c) To award costs of the Application. d) And pass such other order or order as may be deemed fit in the circumstances of the case.
12. There was an e.auction notice dt.10-1-2017 in respect of item Nos.1 to 8 proposing to hold auction on 17-02-2017 issued pending the OA, which was also challenged in the S.A. by way of suitable amendment.
13. Apart from the above referred contentions, it was also contended in the S.A. that 1st respondent ought to have considered the request of petitioner No.1 for reschedulement of loan and for issue of NOC for sale of item Nos.1, 4, 5 and 7 of the SA schedule property; that it included in the notice issued under Section 13(2) of the Act amounts covered by Bank Guarantees which are not invoked by persons for whose benefit they were given; that petitioner No.1 had done two major projects in the State of Andhra Pradesh, Telangana and Karnataka and was to receive Rs.8.15 crores from the said Governments/Departments and the action of the 1st respondent Bank in doing so is arbitrary, illegal and violative of the provisions of the Act.
14. A specific contention was also raised that 1st respondent did not serve the possession notice or affixed it on the properties mentioned therein as is mandatory under Rules 8(1) and (2) of the Act; that the Reserve Price fixed is very low; that 1st respondent did not serve notice in Rule 8(5) and 9(1) on the petitioners; that they did not publish sale notice in leading newspapers having sufficient circulation in the locality; and full description of the item Nos.1, 4 and 5 as regards plinth area, number of floors etc. were not mentioned.
The stand of the 1st respondent
15. The 1st respondent filed counter-affidavit in the S.A. contending that the S.A. was barred by limitation.
16. According to the 1st respondent, C.C. limits were sanctioned by the Bank towards working capital requirements of the business of the borrower; that later limits were renewed by the borrower by producing required documents, but the borrower failed to run the CC Limit as per the terms of sanction and committed various irregularities such as failing to route all the transactions through the loan account etc.
17. It further contended that the borrower availed the Bank Guarantee limit of Rs.25.00 crores and issued various Bank Guarantees to various beneficiaries, but though considerable period has elapsed, the borrower failed to pay the said amounts.
18. According to the 1st respondent, once any Bank Guarantee is invoked and remained unpaid by borrower for 90 days, as per the prudential norms, the loan account has to be treated as NPA. It also denied that there was any proposal from the borrower for reschedulement of the invoked Bank Guarantee liability.
19. According to the 1st respondent, the petitioner no.1/borrower failed to comply with the terms of the sanction for CC limits and failed to repay the dues to the Bank and became NPA prior to 04-10-2015.
20. It is also contended that petitioner no.1 filed W.P.No.15009 of 2016 and the High Court directed it to deposit Rs.2.00 crores into the loan account within 6 weeks, but the petitioner No.1 did not do so.
21. It is contended that all the petitioners were duly issued notices through RPAD and possession notices were duly affixed on the property and it had complied with the provisions of Rule 8(1) and (2) of the Act and publication was made in Financial Express and Visalandhra news papers.
22. According to 1st respondent, item Nos.3, 9 to 12 are vacant pasture lands and no agricultural activity is being caaried on in the said lands. It was denied that auction of item No.3 is in violation of Section 31(i) of the Act and that the said item is agricultural land.
23. It is further contended that the valuation of the properties proposed to be sold was obtained from an approved Valuer and the sale notices issued to the 1st petitioner as well as auction notices were published in ‘Telangana Today’ and ‘Mana Telangana’ news papers.
24. According to the 1st respondent Bank, pursuant to the auction held on 17-02-2017, item No.3 was auctioned for Rs.1,92,20,000/-, item No.4 was auctioned for Rs.1,46,00,000/-, item No.5 was auctioned for Rs.1,27,56,000/- ; and item No.8 was auctioned for Rs.2,76,10,000/-.
The plea of the auction purchaser in the SA
25. The auction purchaser of item No.8 was impleaded as 5th respondent in the S.A. and he filed a counter-affidavit in it stating that he had bid an amount of Rs.2,76,10,000/- and deposited Rs.26.00 lakhs towards earnest money on 14-02-2017; that Rs.45.00 lakhs was paid on 18-02-2017; and the 1st respondent Bank issued letter on 08-03-2017 directing it to pay 75% of the amount within 15 days and he remitted the same (Rs.2,05,10,000/-). He also stated that the sale certificate issued on 23-03-2017 was surrendered by him on 07-02-2018. He contended that he is the bona fide purchaser, who had complied with the terms of the auction and the said item of property was delivered to him.
The order dt.16-5-2019 by the Debt Recovery Tribunal
26. By a brief order passed on 16-05-2019, the Debts Recovery Tribunal-I at Hyderabad dismissed S.A.No.171 of 2016.
27. After considering the contentions of the parties and material on record, it observed that 1st respondent Bank had filed proof of service of the demand notice on the petitioners, that the photographs evidence the service and affixture of possession notice, publications made in Financial Express and Visalandhra on 08-02-2016 and it had demonstrated that it followed the procedure under the Act.
28. It also referred to the sale notice dt.10-01-2017 and postal acknowledgments filed by 1st respondent as proof of service thereof on petitioners which were published in ‘Telangana Today’ and ‘Mana Telangana’ news papers on 13-01-2017 apart from corrigendum issued on 06-02-2017 and published on 07-02-2017 in the said news papers. It also referred to the filing of the 1st respondent of valuation from an approved Valuer on 11-02-2016.
29. It then considered only the question whether the schedule properties 3 and 9 to 12 were agricultural properties and stated that except Revenue Records, petitioners did not file any evidence to show that agriculture was being done in the properties. It accepted the contention of the 1st respondent Bank that there is no agricultural activity being done in the land and also referred to the photographs filed by 1st respondent to show that no agricultural activity was going on and opined that therefore Section 31(i) of the Act has no application and that they could be sold under the provisions of the Act.
30. Assailing the same, this Writ Petition is filed.
The consideration by this Court Re: Taking of possession of item Nos.1 to 12 in 2015 and issuance of possession Notice on 05.02.2016
31. Firstly the possession notice dt.05-02-2016 issued under Sec.13(4) of the Act by the 1st respondent Bank stated that possession was already taken on 03-02-2015 of item Nos.1 to 3, on 04-02-2015 of item Nos.4 to 8 and on 05-02-2015 item Nos.9 to 12 were also taken possession.
32. It is contended by the petitioner that such taking of possession can only be subsequent to issuance of possession notice to the borrower and affixing the same to conspicuous part of the secured asset under Rule 8(1) of the Act.
33. We agree with the said contention because Rule 8(1) requires the authorized officer to take possession of immovable secured assets by delivering possession notice prepared in accordance with Appendix IV to the Rules to the borrower and by affixture of the same on the outer door or conspicuous place of the property.
34. Having taken possession of the above items on 03.02.2015, 04.02.2015 and 05.02.2015 respectively, one year prior to the issuance of notice under Section 13(4) of the Act, it cannot be contended by the 1st respondent that it has complied with the provisions of the Act.
35. The Act requires taking of possession to be contemporaneous with the service of notice and affixture of the notice but the taking of possession cannot be one year prior to issuance of notice under Section 13(4) of the Act. The Debt Recovery Tribunal did not consider this contention though it was specifically raised in para no.K in the O.A. filed by the petitioners.
Re: Item Nos.3 and 9 to 12 mentioned in the possession Notice dt.05.02.2016
36. Next, in the notice dt.21.11.2015 issued under Section 13(2) of the Act by the 1st respondent Bank, item Nos.(f), (g), (h), (i) and (j) are mentioned as agricultural lands. These items are mentioned in the possession notice dt.05-02-2016 issued under Section 13(4) of the Act as item Nos.3, 9 to 12.
37. Pattadar pass books and title deeds for the above properties have been filed as Exs.P-13 to P-16 and Revenue records in Form-1B RoR and pahanis have been filed as Exs.P-17 to P-29 by petitioners. All these documents show that these items are agricultural lands.
38. On the other hand, it is the contention of 1st respondent Bank that these items are vacant pasture lands and no agricultural activities are going on in these lands and reference is made to certain photographs which have been enclosed.
39. Section 31(i) of the Act specifically states that the provisions of the Act would not apply to Security Interest created in ‘agricultural land’.
40. In our opinion, what is necessary to be looked into is whether the secured asset being proceeded with under the Act is ‘agricultural land’ or not; and not whether agricultural activity was being carried out in the land at a given point of time i.e., the date of issuance of notice under Section 13(2) of the Act.
41. The fact that pattadar pass books and title deeds have been issued by the State Revenue Department under the provisions of the A.P. Rights in Land and Pattadar Passbooks Act, 1971, which applies to ‘agricultural lands’, shows that these properties are agricultural lands.
42. No evidence is produced by the 1st respondent Bank that these properties are non-agricultural lands or have been put to non-agricultural use after obtaining permission from the competent authority under the Telangana Agricultural Land (Conversion for non-Agricultural purposes) Act, 2006.
43. In this view of the matter, we are of the opinion that the Tribunal failed to follow the provisions of the Statute and instead of interdicting the sale of these items which are agricultural lands by invoking the provisions of Section 31(i) of the Act, it has chosen to permit the 1st respondent to do so. Therefore, the order of the Tribunal cannot be sustained as regards the said items.
Re: Item No.8
44. Item No.8 mentioned in the notice dt.05-02-2016 is open plot bearing plot No.358, admeasuring 500 sq. yds forming part of Sy.Nos.33, 34p, 35p, 36 to 39 at Sarojini Naidu Nagar, Guttala Begumpet village, Madhapur Panchayat, Ranga Reddy District.
45. It was the specific contention of the petitioners in the O.A. that the Authorised Officers of the 1st respondent Bank failed to affix the possession notice as required from Rules 8(1) and (2) of the Act in regard to the said item.
46. Certain photographs have been filed by respondents showing affixture on the said plot, which indicate that two Officers or employees of the Bank were standing in the land with a piece of paper for a short while. In what manner affixture was made on the open plot as claimed by 1st respondent Bank is not mentioned in the counter-affidavit filed by 1st respondent Bank.
47. Therefore, we hold that there is no proper affixture of possession notice on the vacant plot which is item No.8 mentioned in the possession notice dt.05.02.2016.
Re: Delay in Payment of amount by the auction purchasers in respect of item Nos.3 to 5
48. According to the petitioner, respondent nos.2 to 4 were declared as highest bidders for these items in the auction held on 17.02.2017 but they failed to deposit the balance bid price of 75% within the time fixed in Rule 9(4) of the Rules.
49. It is admitted by the 1st respondent-Bank that the auction purchasers of item Nos.1 to 7 and 9 to 12 did not remit balance of 75% of bid amount and that the auction in relation to the properties other than item No.8 stood cancelled.
50. Coming to respondent no.5 who is the auction purchaser of item No.8, it is stated by the 1st respondent-Bank that he remitted the amount within the time prescribed under Rule 9(4) and that sale certificate was issued on 23.03.2017 for this item and was registered on 07.02.2018 and possession was also handed over to him.
51. The 5th respondent in his counter-affidavit stated that he quoted Rs.2,76,10,000/- for item No.8 of the possession Notice dt.05.02.2016 and stated that he deposited on 14.02.2017 prior to the auction on 17.02.2017, Rs.26,00,000/- vide RTGS; that he deposited after the auction was held on 17.02.2017, pursuant to a letter dt.18.02.2017, Rs.45 lakhs again through RTGS; on 08.03.2017 the 1st respondent-Bank directed him to deposit balance 75% of the bid amount within fifteen days and he gave a cheque No.393614 dt.23.03.2017 for Rs.2,05,10,000/- drawn on Indian Bank to the 1st respondent-Bank. He also stated that after purchase he spent money in leveling the plot, applied for permission to the Municipal Authorities to construct a house in the plot apart from hiring a security guard to protect it.
52. Rule 9(3) states that the highest bidder / purchaser of immoveable property should deposit 25% of the amount of the sale price before the authorized officer conducting the sale. Therefore, the 5th respondent should have deposited 25% of Rs.2,76,10,000/- = Rs.69,02,500/- on the date of the auction, i.e., 17.02.2017. In the instant case, he deposited Rs.26 lakhs on 14.02.2017 and another sum of Rs.45 lakhs on 18.02.2017. Thus, he did not comply with Rule 9(3) of the Rules.
53. Rule 9(4) requires that the balance amount of purchase price payable shall be paid by the purchaser to the authorized officer on or before the 15th day of confirmation of sale of the immoveable property or such extended period as may be agreed upon in writing between the parties. According to Rule 9(2) sale shall be confirmed in favour of the purchaser who has offered the highest sale price in his bid or tender or offer to the authorized officer and the only situation where he can refuse confirmation is if the amount offered as sale price is less than the reserve price.
54. Such being not the case here, the sale confirmation in favour of respondent no.5 should also have been made on 17.02.2017 and he should have deposited the balance 75% on or before 03.03.2017, the 15th day after the confirmation of sale.
55. The payment by respondent no.5 of Rs.2,05,10,000/- was admittedly through Cheque No.393614 dt.23.03.2017, long after the expiry of the 15 day period from the date of confirmation of sale. Therefore, the said sale of item 8 in favor of the 5th respondent of item no.8 cannot be said to be valid in law.
56. How the Debt Recovery Tribunal ignored these facts in the impugned order and dismissed the S.A. filed by the petitioners is inexplicable. The Presiding Officer of the Debt recovery Tribunal-I could not have therefore upheld the sale of this item to 5th respondent as it is clearly contrary to the Rule 9.
57. Curiously, the 1st respondent-Bank suppressed these facts in its counter filed in this Court and sought to mislead the Court by stating that the 75% of the balance bid amount was remitted within time prescribed in Rule 9(4). Such conduct on behalf of the 1st respondent-Bank cannot be countenanced.
Re: other contentions
58. It is contended by respondents that the petitioners have an effective alternative remedy by way of Appeal under Section 18 of the Act to the Debt Recovery Appellate Tribunal and that the present Writ Petition is not maintainable. We reject the said plea because there is no Chairman of the Debt Recovery Appellate Tribunal, Kolkata and appeals have to be filed at that place and parties have to go to the In-Charge Debt Recovery Appellate Tribunal, at Allahabad for interim relief. This is cumbersome and the alternative remedy therefore cannot be said to be an effective alternative remedy.
59. It is contended that the petitioner No.1 is a Company and that there is no authorization to file the Writ Petition. In our opinion, the Managing Director of the petitioner No.1 cannot be said to be incompetent to file the Writ Petition particularly when he had also signed the papers in the S.A. filed before the Debt Recovery Tribunal. There is no bar for him to represent the other petitioners as well.
60. The contention of the 1st respondent that once the petitioners approached it for payment of amounts and requested for release of properties mortgaged to it, they have waived benefits under Rules 8 and 9 of the Rules, is without any merit because as a fact there is no waiver by any of the petitioners of their rights and there cannot be any estoppel against the statute.
61. It is also contended that the S.A. should have been rejected on the ground that individually the petitioners did not pay Court Fee. A Division Bench of this Court in M/s. Durga Bhavani Agro Tech Industry, Atmakur Village & Mandal, Warangal Dist rep. by its Manager M.Sreedhar Vs. Canara Bank, Hanamkonda Branch, Warangal rep. by its Authorized Officer and others (Order dt.18.04.2018 in W.P.No.12189 of 2018 (High Court at Hyderabad for the States of Telangana and AP) held that the series of steps that could be taken by an authorized officer under Section 13(4) of the Act are generally termed as “measures”; it is the right of a person against whom one or more of the measures are taken under Section 13(4) of the Act to challenge those measures under Section 17 of the Act; and when an auction notice is challenged, it is even open to the borrower to challenge the series of steps from the date of issue of Section 13(4) of the Act, up to the date of the auction notice.
It observed that cause of action is nothing but a bundle of facts; Court fee does not become payable on every single cause of action; and Court fee before the Debts Recovery Tribunal is not paid on the basis of valuation of everyone of the prayers made before the Tribunal; and the Tribunal cannot ask the parties to pay Court fee afresh on prayers added by way of amendment and such power is not traceable to the statute or the rules. This decision was followed and applied in an order dt.24.01.2020 in W.P.No.13936 of 2019.
This contention is also therefore without any merit.
62. It is next contended that the plea of petitioners in the S.A. in relation to the possession notice issued on 05.02.2016 is barred by limitation.
63. We do not subscribe to the said view in view of our decision dt.24.01.2020 in Writ Petition No.13936 of 2019 wherein we have held:
“71. From these decisions, it follows that the series of steps from the date of issue of Section 13(4) of the Act, up to the date of the auction notice can be challenged by the borrower when he challenges the auction notice under Section 17 of the Act; though the cause of action started when possession was taken,
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the said cause of action is continued by the issuance of auction sale notice by the Bank; even if the borrower had not filed an Application under Section 17 of the Act at the time of his dispossession, he cannot be deprived of the opportunity to approach the DRT for post Section13(4) events as well; and the DRT is entitled to question the action taken by the secured creditor and the transactions entered into by virtue of Section 13(4) of the Act. 72. Therefore, in the instant case though the O.A. is filed on 01.10.2018 by the petitioners, they can not only challenge the possession notice issued on 03.03.2017 for taking of symbolic possession, but also the taking of physical possession in May, 2018, the sale notice issued on 02.07.2018 and the sale certificate issued on 27.09.2018 by the 1st respondent Bank to the 2nd respondent. This is because the same cause of action continues till the sale notice was issued on 2.7.2018. None of the actions prior to 2.7.2018 would be barred by limitation.” 64. So when the auction notice itself was issued on 17.02.2017 pending the S.A., and that was challenged by way of amendment of the S.A.; and in the S.A., steps initiated under Section 13(2) and 13(4) of the Act were already questioned, it cannot be said that the S.A. was barred by limitation. 65. The reliance on the decision in Dwarika Prasad vs. State of U.P. (2018) 5 SCC 491)by the respondents is misplaced because when there are serious infirmities as in the instant case committed by the 1st respondent Bank with regard to the sale of secured assets, the Court cannot be an idle spectator and allow the creditor or the auction purchaser to have the benefit of such serious infirmities on the ground that the right to redemption stands extinguished on the execution of the registered sale deed. CONCLUSION 66. For the aforesaid reasons, the Writ Petition is allowed; the order dt.16.05.2019 in S.A.No.171 of 2016 of the Debts Recovery Tribunal-I, Hyderabad is set aside; the possession notice dt.05.02.2016 as well as the sale notice dt.10.01.2017 issued by the 1st respondent Bank are both set aside; the sale of item No.8 property mentioned in the sale notice dt.10.01.2017 pursuant to the auction held on 17.02.2017 as well as sale certificate dt.23.03.2017 which was registered as doc.No.20139/2018 with the S.R.O., Ranga Reddy District is set aside; and liberty is granted to the 1st respondent to recover the dues from the petitioners strictly in accordance with the Act and the Rules framed thereunder. The 1st respondent shall also pay costs of Rs.2,000/- (Rupees Two Thousand only) to each of the petitioners. 67. As a sequel, miscellaneous petitions pending if any in these Writ Petitions, shall stand closed.